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12/15/89 the People of the State of v. Geno Fiorini

December 15, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GENO FIORINI, D/B/A COOK'S TRAILER COURT, ET AL., DEFENDANTS-APPELLANTS (GENO FIORINI ET AL., DEFENDANTS AND COUNTERPLAINTIFFS-APPELLANTS; THE CITY OF OTTAWA ET AL., THIRD-PARTY DEFENDANTS-APPELLEES; THE UNITED STATES OF

AMERICA, HOUSING AND URBAN DEVELOPMENT AGENCY, ET AL., THIRD-PARTY DEFENDANTS). -- THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF

v.

GENO FIORINI, D/B/A COOK'S TRAILER COURT, ET AL., DEFENDANTS-APPELLANTS (GENO FIORINI ET AL., DEFENDANTS AND COUNTERPLAINTIFFS-APPELLANTS; THE CITY OF



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

Ottawa et al., Third-Party Defendants-Appellees; The United

States of America, Housing and Urban Development Agency, et

al., Third-Party Defendants)

Nos. 3-87-0865, 3-88-0050 cons.

548 N.E.2d 729, 192 Ill. App. 3d 396, 139 Ill. Dec. 344 1989.IL.1954

Appeal from the Circuit Court of La Salle County; the Hon. Thomas R. Flood, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. BARRY, J., concurs. JUSTICE STOUDER, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

The State of Illinois filed a complaint on August 13, 1986, alleging that the defendants-counterplaintiffs, Geno and Bernardine Fiorini, permitted waste consisting of demolition debris, tires, wood, appliances, scrap metal, and steel drums to be deposited into and near a ravine located behind their trailer park located approximately three-fourths of a mile west of Ottawa, Illinois. The disposal site is not licensed as a sanitary landfill, thus violating the open dumping provision of section 21 of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1987, ch. 111 1/2, par. 1021). The relief requested in the State's complaint included an injunction prohibiting the defendants from disposing any further waste at the site, an injunction requiring the defendants to remove all waste improperly stored, a civil penalty under the Illinois Environmental Protection Act in the amount of $10,000 for each act, and a continuing penalty of $1,000 for each day of said violation for the abatement of the alleged nuisance.

On April 24, 1987, the defendants-counterplaintiffs filed an answer and a counterclaim asserting third-party claims against the State of Illinois, the City of Ottawa, the United States Department of Housing and Urban Development, the Catholic Diocese of Peoria, Zion Lutheran Church, and Richard Thompson and Glen Thompson, claiming that each of these parties had caused or allowed certain debris to be dumped on their property. The State of Illinois was subsequently dismissed as a counterdefendant in the instant lawsuit, and the defendants-counterplaintiffs filed a similar action against the State of Illinois in the Illinois Court of Claims. Thereafter, the defendants-counterplaintiffs were allowed to file an additional answer and counterclaim in the present action. The second answer and counterclaim, which was filed on June 9, 1987, included third-party claims against all of the previously mentioned parties with the exception of the State of Illinois and also included a third-party claim against School District Number 141, La Salle County, Illinois. The United States Department of Housing and Urban Development was subsequently dismissed from the lawsuit. The trial court then granted motions, to dismiss the third-party complaint, which were filed by the remaining third-party defendants. In dismissing the third-party complaint, the trial court held that, pursuant to the Illinois Environmental Protection Act, it was within the prosecutorial discretion of the Illinois Attorney General to determine whom the State brought their complaint against and that the defendants-counterplaintiffs did not have the right under the Act to bring a third-party action. The defendants-counterplaintiffs appeal the dismissal of their third-party complaint.

On appeal, the defendants raise two arguments: (1) Article XI, section 2, of the Illinois Constitution of 1970 provides a constitutional right on the part of the defendants to enforce their right to a healthful environment against the various third-party defendants; and (2) the Illinois Environmental Protection Act (Act) provides remedies for private persons against persons whom they assert caused the dumping of waste upon their property. Although the specific issues raised by the defendants will be discussed in the text of this opinion, this court will focus on the more fundamental question of whether or not the Illinois Environmental Protection Act precludes third-party actions. This is a matter of first impression for Illinois courts, and before delving into the relevant statutory language, a closer examination of the facts and circumstances surrounding the instant appeal is warranted.

In the defendants-counterplaintiffs' second counterclaim, it was alleged that the City of Ottawa caused or allowed demolition debris from the Ottawa police and fire station and Lockwood Glass Building to be deposited on their property. The police and fire station and Lockwood Glass Building were demolished pursuant to a bridge expansion, known as the Veterans' Memorial Bridge project. Thereafter, the City of Ottawa, in its answer to the counterclaim, submitted an affirmative defense claiming that the State of Illinois, through the Department of Transportation, acquired title to the buildings in question and contracted for their demolition and the Disposition of the debris therefrom.

With regard to the remaining third-party defendants, the defendants-counterplaintiffs' amended counterclaim set forth the following allegations. The Catholic Diocese of Peoria caused or allowed the debris from the demolition of the St. Columbia School and the St. Francis School to be deposited at their ravine. The Zion Lutheran Church caused or allowed the debris from the demolition of a parish house to be deposited at their ravine. Richard and Glen Thompson caused or allowed the demolition debris of Hillcrest Motel to be dumped at the ravine site. School District Number 141 caused or allowed demolition debris from sidewalks at Warren P. Shepherd Junior High School to be deposited at the site. The second counterclaim requested relief in the form of an injunction against all third-party defendants directing them to remove all wastes disposed on their property and the assessment of civil penalties under the Illinois Environmental Protection Act.

The defendants-counterplaintiffs first argue that their third-party complaint was improperly dismissed because of language found in the Illinois Constitution. Article XI, section 2, of the Illinois Constitution of 1970 provides:

"Each person has the right to a healthful environment. Each person may enforce this right against any party, governmental or private, through appropriate legal proceedings subject to reasonable limitation and regulation as the General Assembly may provide by law." (Emphasis added.) (Ill. Const. 1970, art. XI, § 2.)

While this constitutional language does support private actions for the enforcement of a healthful environment, these rights are subject to reasonable limitations that may be established through laws passed by the Illinois General Assembly. Thus, an examination of the relevant provisions of the Illinois Environmental Act is necessary to determine if the instant third-party action was properly dismissed.

The defendants-counterplaintiffs rely on the following provisions of the Illinois Environmental Protection Act to ...


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